HKSAR v. LEE CHI WAI

CACC 86/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 86 OF 2001

(ON APPEAL FROM HCCC NO. 100 OF 2000)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 The applicant was indicted upon two counts: the first alleged that on 9 December 1999 he possessed a mixture containing 5.86 grammes of heroin, and the second that on the same date he trafficked in a mixture containing 574 grammes of heroin. He was tried in February 2001 before Deputy Judge Toh and a jury, and convicted. He was sentenced in respect of the first count to a term of one year's imprisonment, and to 18 years' imprisonment in relation to Count 2 to be served concurrently: a total, therefore, of 18 years' imprisonment. He now seeks leave to appeal against both convictions. We originally had before us an application for leave to appeal sentence. The applicant has today, which is a resumed hearing, abandoned his application in relation to the sentence in respect of which, in any event, we saw no merit. That application is dismissed.

2 In relation to the conviction, the prosecution evidence was that on 9 December 1999 police officers approached the applicant outside the gate to premises in Sai Yeung Choi Street South, and that the applicant inserted a key into the gate lock. One of the officers went to him and revealed his identity, whereupon the applicant was seen to put a hand in a pocket of his jacket, withdraw a cigarette packet, and throw it to the ground behind him. When the packet was examined it contained some white powder which turned out to be heroin, and it is this that formed the subject of Count 1.

3 According to the evidence, the applicant tried to make off, and there was a struggle after which he was taken to the premises themselves, whereupon he led the police to a room inside the flat where keys found on him were used to enter. There they found the drugs in Count 2, as well as tools and re-sealable plastic bags in the living room. The drugs were found in a plastic box at the foot of the only bed in the room, a box fully open to view to anyone who entered; and the tools and scales were seen in a carton right next to the plastic box, again fully open to view. The tools of which we speak consisted of hammers, a screw driver, and scissors, and there were also scales. Air conditioning filters carried traces of heroin. The applicant is alleged to have made some inculpatory remarks such as "I am busted for sure". It was also the prosecution case that the applicant was a tenant of the premises.

4 The applicant gave evidence. His case was that whilst he was the tenant in those premises, two other persons had access: his girlfriend and another female called Chan; and that, serve for the hammer, he had no idea how the drugs or the tools came to be in the flat. He said that he left the premises the night before at about 11pm with his girlfriend and did not go home thereafter until the police took him there on the night of the 9th December. He said that he had been to Mongkok Police Station in relation to some unconnected matter, and he was on his way home when the police rushed him in Sai Yeung Choi Street and carried him through the street to the flat, and that when he arrived, other police were already there, and he saw this plastic box there, and was told that drugs had been discovered. He said that he had made no admission of culpability, but was just told to sign in a notebook presented to him. A witness testified on his behalf that he saw the applicant being carried down the street.

5 The applicant first complains about the judge's direction as to the concept of possession. He complains that the direction did not accord any, or proper, attention to the fact that there were two other persons who had access to the flat. He says that the judge should have told the jury to ask themselves whether there was a possibility that either of the other two had used the flat for trafficking in dangerous drugs whilst the applicant was out, in circumstances in which he knew nothing of the matter.

6 In our judgment, the issue of possession was sufficiently covered. The jury was reminded of the defence and told that if the applicant's account was or might be correct, then they were to acquit. They were told that before they could convict, they had to be sure that the applicant knew that there were drugs in the flat and that he was in possession of them either on his own or jointly with others, and that they could not convict unless sure that he himself intended to possess the drugs in question. The judge directed the jury that mere presence in the room with the drugs there, even presence with knowledge that they were there, did not suffice, but that it had to be proved that the applicant had "the intention, the power and ability to take possession of [the drugs] and to deal with [them] as he likes."

7 Then it is said that the judge did not direct the jury that even if the applicant was in possession it had to be proved that he knew that others possessed them for the purpose of trafficking. We think that this is unrealistic. The judge told the jury that before they could convict the applicant of trafficking they had to be sure that the "the purpose for which he possessed the dangerous drugs was for trafficking." This requirement was repeated time after time. In the particular circumstances of the case, it was unnecessary for the judge to say more.

8 In his original grounds of appeal, the applicant alleged that there was a juror who was asleep during his trial. We adjourned the hearing of this application when first it came before us on 20 December last, so that the matter could be investigated. We now have a transcript of the relevant part of the proceedings. It emerges that on 8 February 2001, well before the trial concluded on 15 February, counsel for the applicant drew to the judge's attention the applicant's contention that before the luncheon adjournment a female juror had been dozing off. The prosecution counsel had noticed it too and counsel asked the judge to give the jury a warning. The judge was not satisfied that there should be a warning, and she proposed that the evidence of the witness be replayed in so far as it covered the period during which the juror had not been attentive. Defence counsel identified that period as relating to the time when he had been cross-examining a police witness about a chain which the witness had been wearing on the day of the applicant's arrest. Counsel were content with the proposed course. Counsel for the applicant specifically said that he wanted no other part played back. So, a short part of the evidence was replayed, covering some six pages of transcript. The relevance of the evidence is that the officer said that he had merely stood guard outside the premises in question after the applicant had been taken there, whereas the applicant's case was that the officer was in the premises and had talked to him; a fact which he asserted could be proved by the applicant's knowledge of the weight of the officer's gold chain, which he said could only have come from a comment made to the applicant by the officer. That is the long and the short of the matter.

9 The applicant was in this case represented by counsel of considerable experience with jury trials, and no application was made to the judge to discharge the juror. Counsel would necessarily have had a very good sense of how important was the evidence to his client, and how significant was the fact and extent of the jurors' inattention to the case as a whole. Having read the evidence in question, and assessed its significance in the light of all the issues in the case, we are not surprised that no such application was made.

10 In R v Tam Chung-shing [1990] 1 HKLR 718, Kempster JA, at page 722, said that an appeal on a ground such as the present could not succeed unless it was shown that

"by reason of somnolence the juror may well have incapacitated himself from hearing significant evidence or from assessing the demeanour of witnesses for periods so appreciable as to render him incompetent to give a true verdict according to the evidence and to his oath."

11 In R v Wong Wai Bor, Crim App 465 of 1986, unreported, Hunter J, as he then was, said:

"It takes little to convince us that a sleeping juror is disqualifying himself from giving a true verdict according to the evidence. But this is very much a matter of fact and degree, upon which the judge in the court below has to rule in the light of what he sees and hears in the course of that hearing. If no application is made to the judge to discharge that juror, it is extremely difficult for an applicant thereafter to invite this court to intervene. There are certainly dicta in the speech of Lord Atkin in the Privy Council case of Ras Behari Lal & Ors v The King-Emperor (1933) 50 TLR 1 at p.2 that suggest that if no such application is made that is fatal to the applicant's point as a matter of law."

Much the same point was made in R v Tomar [1997] Crim LR 682.

12 It should not be thought that by this judgment we are conferring some seal of approval to the playing back of evidence whenever a juror nods off. In the context of this case, given the nature of the evidence missed, and the concurrence of defence counsel, we do not criticise the course taken. But there can in the circumstances we have described be no question of allowing this application on the basis of the facts which have been revealed.

13 The applicant asserts next that one of the seven jurors was a schoolmate at primary school. This was not a matter suggested by anyone at the trial. It was not even a matter raised by the applicant in his original grounds of appeal. He said in his fuller grounds of appeal, filed later, that during the trial he only paid attention to the prosecutor and the defence counsel and not to the jurors, an allegation which is inherently unbelievable in a case of this length, and also sits ill with his complaint about the sleeping juror. He said that at trial her face was familiar to him, but he could not recall where he had seen her before. As we say, this was a trial which lasted about ten days and we simply do not accept that this applicant did not pay close attention to the jurors. Had he noticed something familiar, he would no doubt have drawn it to the attention of his counsel, as he did with the sleeping juror. In any event the applicant is now aged 25 years. If his account were true, he would not have seen this lady for about 15 years, and the only relevance of the matter which he can put forward is the suggestion that when he was at school he was naughty and that, somehow, had this lady remembered him she might have remembered that fact to his disadvantage. This was all far too remote in any event, and in the circumstances we have described we are satisfied that there is nothing in this ground.

14 For the reasons we have given, the application for leave to appeal against conviction is dismissed.